Citation Nr: 1107828 Decision Date: 02/28/11 Archive Date: 03/09/11 DOCKET NO. 09-06 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an effective date earlier than December 21, 2009, for the assignment of a 70 percent evaluation for posttraumatic stress disorder (PTSD). 2. Entitlement to a higher initial rating for PTSD, rated as 30 percent disabling from July 1, 2006, 50 percent disabling as of June 4, 2007, and 70 percent disabling as of December 21, 2009. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from July 2002 to June 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in July 2007 and February 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The July 2007 rating decision revised the initial ratings assigned for PTSD upward from a noncompensable rating to a 30 percent rating from July 1, 2006 (the day after discharge from service), and a 50 percent rating effective from June 4, 2007. A notice of disagreement was received in July 2008, in which the Veteran contended that a rating of greater than 50 percent was warranted. A statement of the case on the issue of entitlement to a rating in excess of 50 percent for PTSD was issued in January 2009 and a VA Form 9 was received in January 2009. The February 2010 rating decision on appeal assigned a staged initial rating of 70 percent for PTSD effective from December 21, 2009. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2 (separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings). In March 2010 the RO received in notice of disagreement in which the Veteran contended that an earlier effective date of July 29, 2009, was warranted for a 70 percent rating for PTSD. A statement of the case on the issue of entitlement to an effective date earlier than December 21, 2009, for the assignment of a 70 percent evaluation for PTSD (increased from 50 percent) was issued in March 2010, and a VA Form 9 was received in March 2010. Although the RO has assigned staged ratings of 30, 50 and 70 percent for the Veteran's PTSD, the Veteran has continued his appeal for still-higher ratings. See AB v. Brown, 6 Vet. App. 35 (1993). The Board will grant an earlier effective date of April 3, 2007, for a 70 percent rating for PTSD. The Veteran's combined schedular rating for service-connected disabilities is in excess of 70 percent and he has alleged that he cannot maintain employment due to PTSD. A claim for a TDIU is therefore raised and to be considered part and parcel of the current appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a TDIU claim is part of an increased rating claim when such claim is raised by the record, and that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability). The Veteran withdrew a prior request for a Board hearing by written correspondence received in September 2010. The claims for a higher initial rating for PTSD and for a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The earliest evidence currently of record of a worsening of the Veteran's PTSD to an extent consistent with the criteria for a staged initial rating of 70 percent consists of VA records of treatment beginning on April 3, 2007. CONCLUSION OF LAW The criteria for an earlier effective date of April 3, 2007, for a rating of 70 percent for PTSD are met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The RO has granted an effective date of December 21, 2009, for an increased rating of 70 percent for PTSD. The Veteran appeals for an earlier effective date of July 29, 2009, for a 70 percent rating for PTSD. In this decision, the Board will find that the medical evidence currently of record is sufficient to show that it was ascertainable that the Veteran's PTSD had worsened and that a 70 percent rating was warranted on April 3, 2007. Accordingly, an earlier effective date for a 70 percent rating for PTSD of April 3, 2007, will be granted. By today granting the Veteran's appeal for an earlier effective for a schedular rating of 70 percent for PTSD based on the evidence of record, the Board will establish that the schedular criteria for a TDIU are met from April 3, 2007, forward. See 38 C.F.R. § 4.16(b). However, the Board will find that the evidence is currently insufficient to adjudicate the Veteran's claims for a higher initial rating for PTSD and for a TDIU. Thus, further development and adjudication of those remaining matters on appeal will be directed in the remand section of this decision, below. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) defines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b). Second, VA has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). As discussed below, sufficient evidence is of record to grant the claim for an earlier effective for a rating of 70 percent for PTSD. The Board will grant an earlier effective date of April 3, 2007, for the 70 percent rating. This is an effective date more than two years earlier than the effective date of July 29, 2009, for a 70 percent rating sought on appeal. See statement of Veteran's representative dated in March 2010; notice of disagreement signed by Veteran in March 2010. Thus the Board's decision with respect to the claim for an effective date earlier than July 9, 2009, for a rating of 70 percent for PTSD is a grant of a benefit substantially greater than the benefit sought on appeal for this specific issue. Accordingly, no further notice or development is needed with respect to this issue. The claims for a higher initial rating for PTSD and for a TDIU will be addressed in the remand section of this decision, below. Merits of the Claim Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service treatment records. 38 C.F.R. §§ 4.2, 4.41. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). A claim such as this one, placed in appellate status by disagreement with the initial rating award and not yet ultimately resolved, is an original claim as opposed to a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. Pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, a 30 percent rating for PTSD will be assigned where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss. A 50 percent rating will be assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board is to consider the Global Assessment of Functioning (GAF) scores that have been reported during the rating period on appeal. GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.), p. 32). GAF scores from 91 to 100 represent superior functioning in a wide range of activities. GAF scores from 81 to 90 represent absent or minimal symptoms. GAF scores from 71 to 80 represent no more than slight impairment of in social, occupational or school functioning. GAF scores of 61 to 70 represent some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or schooling functioning (e.g., occasionally truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. GAF scores from 51 to 60 represent moderate symptoms, such as flat affect and circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school function (such as few friends, conflicts with peers or co- workers). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), for rating purposes). Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of increased compensation to a veteran shall be the earliest date as of which it is ascertainable that an increase in disability has occurred, if the application for an increased rating is received within one year of the date of increase in disability. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C. § 5107 (West 2002). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran is currently rated as 30 percent disabled due to PTSD from July 1, 2006 (the day after discharge from service); 50 percent disabled due to PTSD from June 4, 2006; and 70 percent disabled due to PTSD from December 21, 2009. In a rating decision dated in February 2010, the RO granted a rating of 70 percent for PTSD, effective from December 21, 2009. In March 2010, the RO received written statements from the Veteran and from his representative expressly disagreeing with the effective date of December 21, 2009, for a staged higher initial rating of 70 percent for PTSD. The Veteran and his representative specifically contended in the notice of disagreement that an effective date of July 29, 2009, was warranted, for a 70 percent rating for PTSD. At a May 2006 pre-discharge VA examination, the Veteran was shown to have symptoms associated with PTSD such as anxiety, depression, nightmares, flashbacks, and hyper-vigilance and hyper-arousal. There were no abnormal findings on mental status examination. Global assessment of functioning was rated as 65. The Veteran was discharged from active service on June 30, 2006. In a rating decision dated in August 2006 the Veteran was granted service connection for PTSD and a noncompensable rating was assigned. On April 3, 2007, the Veteran sought treatment for PTSD at a VA Medical Center. On intake the Veteran indicated that he had depression and PTSD while in the military and needed to follow up. He indicated that he was not suicidal but was "going round and round getting no help," and could not sleep well. He described problems with his hearing, knees and legs (for which he is in receipt of service connection), but expressed the view that "I need straightening up my head first. . . I need help." (Quotes in original treatment note.) The active problems list included depression and PTSD. Screens for major depression and PTSD were positive. The Veteran indicated that he was constantly on guard, watchful, or easily startled; and that he felt numb and detached from others, activities, or his surroundings. The assessment included a history of depression, PTSD, insomnia, and having paranoid symptoms. At VA mental health treatment on April 5, 2007, PTSD was diagnosed and a GAF score of 45 was assigned. The Veteran was begun on psychiatric medication. The Veteran indicated that he was frustrated because of his psychiatric problems. He described having sleep disruption with difficulty initiating and maintaining sleep. He indicated that sometimes he did not sleep at all and felt exhausted the next day. He described an increase in dreams and flashbacks related to combat over the past three to six months. He had intense and fearful dreams about being on patrol and being in firefights. He had vivid dreams of combat scenes including a friend who was severely injured and died beside him. At a VA examination in July 2007, the Veteran was diagnosed as having PTSD and a GAF score of 45 was assigned. A lengthy report of symptoms and complaints included fleeting thoughts of suicide, flashbacks to combat in Iraq such that he felt his eyes were playing tricks on him, intrusive thoughts of a close friend who was killed by his side, nightmares of combat, and frightening a girlfriend due to sudden reactions and violent movements in his sleep as he dreamt of combat. He indicated that he kept a knife under his pillow. His re-experiencing of symptoms was described as "significant and extremely disturbing." He had adopted a cold nature, which he had retained, as a result of interrogating Iraqi insurgents. He was deeply distressed about his time in Iraq and could not integrate this into his current life. He stated that anger was a significant problem in his life and that and that he was often raising his voice, hollering and cursing. He said he had no patience for stupidity and described many homicidal thoughts since he left Iraq. He described panic attacks including heart palpitations and periods of shaking and chest pain. He had been undergoing treatment for four months and was taking an antidepressant. The Veteran was noted to have a primary diagnosis of PTSD and to have some alcohol intake secondary to PTSD. He described a worsening of his symptoms since discharge from service. The VA examiner opined that "this is quite a devastating impact of PTSD for this 28-year-old single gentleman who prior to going into Iraq had a normal social life." An August 2008 report of evaluation at the Trenton Vet Center contains findings consistent with the examination and treatment findings discussed above. The diagnosis was chronic PTSD. A GAF score of 45 was assigned. The Veteran's GAF score from April 2007 forward has been found to be 45 on VA examination, at VA treatment, and upon evaluation at the Trenton Vet Center. A GAF score of 45 is consistent with a rating of 70 percent, as GAF scores ranging from 41 to 50 are designated to reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Further, the April 2007 intake notes and the July 2007 VA examination report are sufficient to establish that the Veteran had symptomatology of PTSD sufficient to warrant a rating of 70 percent from April 3, 2007, forward. This is the first date that it is ascertainable that the Veteran's PTSD had worsened and that the criteria for a rating of 70 percent for PTSD were met. See 38 C.F.R. 3.400(o). In addition to a GAF score of 45, symptoms consistent with a rating of 70 percent from April 2007 forward as described in VA treatment and examination records include suicidal and homicidal ideation, interference with routine activities, near-continuous panic or depression; impaired impulse control with unprovoked irritability and periods of violence; and difficulty in adapting to stressful circumstances such as work or a worklike setting. In light of the above, an earlier effective date of April 3, 2007, for an increased rating of 70 percent for PTSD, is warranted. This is a grant of the separately appealed and certified claim for an effective date earlier than December 21, 2009, for a 70 percent rating for PTSD. This decision shall not be interpreted so as to preclude still-higher ratings upon further development and adjudication of the Veteran's separate but related claims for a TDIU and a higher initial rating for PTSD. ORDER Entitlement to an earlier effective date of April 3, 2007, for a rating of 70 percent for PTSD is granted. REMAND A July 2007 VA examination report indicates that the Veteran had been receiving VA mental health treatment continuously from April 2007 to July 2007; however, aside from records of treatment from April 3, 2007, to April 13, 2007, those records of treatment have not been associated with the claims file. The records of treatment from April 2007 to July 2007 must be sought and obtained for consideration of the Veteran's claims for a rating in excess of 70 percent for PTSD and for a TDIU. See 38 U.S.C.A. § 5013A(a)-(c); Bell v. Derwinski, 2 Vet. App. 611 (1992). In a letter dated in January 2010 a private clinician opined that the Veteran should be rated as 70 percent disabled due to PTSD, and in a letter dated in March 2010 the same clinician opined that the Veteran should be rated as 100 percent disabled due to PTSD. Although it is not clear whether the physician is aware of VA's criteria for the evaluation of service-connected disorders, the clinician's observation is relevant because it presumably reflects a worsening of the Veteran's condition in the year 2010. The most recent VA examination of the Veteran was conducted in December 2009. At that examination the Veteran described a pattern of being unable to hold a job due to symptoms of PTSD. The record does not contain an opinion as to whether the Veteran's PTSD, or his PTSD in combination with his additional service-connected disabilities, renders him totally socially and occupationally impaired, or unable to secure or follow a substantially gainful occupation. In light of the apparent worsening of the Veteran's PTSD since the most recent VA examination and the need for an opinion as to whether he has total occupational and social impairment due to service-connected disability, a new VA examination and opinion is needed for adjudication of the claims for a higher initial rating for PTSD and for a TDIU. See 38 U.S.C.A. § 5103A(d); VAOPGCPREC 11-95. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all records of all private, VA and Vet Center health care providers who have treated his service- connected PTSD, low back, tinnitus, left and right knee, left foot and right forearm scar disabilities during the period from July 2006 to the present. (a) After obtaining any appropriate authorizations for release of medical information, the RO must obtain all relevant available records not currently associated with the claims file from each health care provider the Veteran identifies. (b) The records sought must include VA records of treatment for PTSD from April 2007 to July 2007, and any subsequent relevant records of VA treatment not previously obtained. (c) The Veteran must also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO. 2. The RO/AMC, after waiting an appropriate time period for the Veteran to respond, shall schedule the Veteran for a VA examination by a physician with appropriate expertise. The purpose of the examination is to determine the current severity of the Veteran's psychiatric disability and to determine whether the Veteran, as a result of the combined effect of his service-connected disabilities, is unable to secure or follow a substantially gainful occupation. The following considerations will govern the examination: (a) The claims folder, including all medical records, and a copy of this remand, will be reviewed by the examiner. The examiner must acknowledge receipt and review of the claims folder, the medical records obtained, and a copy of this remand. (b) If deemed appropriate by the examiner, the Veteran must be scheduled for further medical examinations. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. (c) The examiner must indicate whether the Veteran's psychiatric disability is manifested by total occupation and social impairment, and must specifically state whether his psychiatric disability includes: (i) gross impairment in thought processes or communication; (ii) persistent delusions or hallucinations; (iii) grossly inappropriate behavior; (iv) persistent danger of hurting self or others; (v) intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); (vi) disorientation to time or place; (vii) memory loss for names of close relatives, own occupation or own name. (d) The examiner must describe all present manifestations of the Veteran's PTSD. (e) The examiner must assign a Global Assessment of Functioning score with a rationale for the score provided. (f) The examiner must provide an opinion as to whether the combined effects of the Veteran's service-connected PTSD, low back disability, tinnitus, left knee patellofemoral pain syndrome, right knee patellofemoral pain syndrome, residuals of a left great toe fracture, and right forearm scar render him unable to secure and follow a substantially gainful occupation. (g) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. 3. Readjudicate the issues on appeal. Readjudication must include the matters of entitlement to a TDIU and entitlement to staged higher initial ratings for PTSD. If any benefit sought remains denied, the Veteran and his representative must be provided a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs